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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Child Exploitation Material and Classification
Legislation Amendment Bill 2009
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
Part 2 -- Child exploitation material
offences
Division 1 -- The Criminal Code amended
3. Act amended 3
4. Part IV Chapter XXIV inserted 3
Chapter XXIV -- Child exploitation material
216. Terms used 3
217. Involving child in child exploitation 4
218. Production of child exploitation material 4
219. Distribution of child exploitation material 4
220. Possession of child exploitation material 5
221A. Defences and exclusions for section 217,
218, 219 or 220 5
221B. Forfeiture 7
5. Section 557K amended 7
Division 2 -- Classification (Publications, Films
and Computer Games) Enforcement
Act 1996 amended
6. Act amended 8
7. Section 3 amended 8
8. Part 7 Division 1 heading amended 8
9. Section 60 deleted 8
043--1 page i
Child Exploitation Material and Classification Legislation Amendment
Bill 2009
Contents
10. Section 99 amended 8
11. Section 116 amended 8
12. Section 117 amended 9
Division 3 -- Consequential amendments
13. Community Protection (Offender Reporting)
Act 2004 amended 9
14. Prostitution Act 2000 amended 10
15. Working with Children (Criminal Record
Checking) Act 2004 amended 10
Part 3 -- Amendments consequential
to the Classification
(Publications, Films and
Computer Games) Amendment
Act 2007 (Commonwealth)
16. Act amended 12
17. Section 3 amended 12
18. Section 7 inserted 12
7. Films consisting only of classified films 12
19. Section 66 amended 13
20. Section 74 amended 13
21. Section 96 amended 14
22. Section 102F amended 14
23. Section 106 amended 14
24. Section 108 amended 15
25. Section 130 amended 16
26. Section 141 amended 17
Part 4 -- Amendments in relation to
advertising
27. Act amended 18
28. Section 3 amended 18
29. Section 90 amended 18
30. Section 91 amended 19
31. Section 92 amended 19
32. Section 94 amended 21
33. Section 95 amended 22
page ii
Child Exploitation Material and Classification Legislation Amendment
Bill 2009
Contents
34. Section 102D amended 24
35. Section 152A inserted 24
152A. Advertisements for unclassified films 24
page iii
Western Australia
LEGISLATIVE COUNCIL
Child Exploitation Material and Classification
Legislation Amendment Bill 2009
A Bill for
An Act to amend The Criminal Code in relation to child exploitation
material offences, to make consequential and other amendments to
the Classification (Publications, Films and Computer Games)
Enforcement Act 1996 and for related purposes.
The Parliament of Western Australia enacts as follows:
page 1
Child Exploitation Material and Classification Legislation Amendment
Bill 2009
Part 1 Preliminary
s. 1
1 Part 1 -- Preliminary
2 1. Short title
3 This is the Child Exploitation Material and Classification
4 Legislation Amendment Act 2009.
5 2. Commencement
6 This Act comes into operation as follows --
7 (a) sections 1 and 2 -- on the day on which this Act
8 receives the Royal Assent;
9 (b) the rest of the Act -- on a day fixed by proclamation,
10 and different days may be fixed for different provisions.
page 2
Child Exploitation Material and Classification Legislation Amendment
Bill 2009
Child exploitation material offences Part 2
The Criminal Code amended Division 1
s. 3
1 Part 2 -- Child exploitation material offences
2 Division 1 -- The Criminal Code amended
3 3. Act amended
4 This Division amends The Criminal Code.
5 4. Part IV Chapter XXIV inserted
6 At the end of Part IV insert:
7
8 Chapter XXIV -- Child exploitation material
9 216. Terms used
10 In this Chapter --
11 child means a person under 16 years of age;
12 child exploitation material means material that, in a
13 way likely to offend a reasonable person, describes,
14 depicts or represents a person, or part of a person, who
15 is, or appears to be, a child --
16 (a) engaging in sexual activity; or
17 (b) in a sexual, offensive or demeaning context; or
18 (c) being subjected to abuse, cruelty or torture
19 (whether or not in a sexual context);
20 material includes --
21 (a) any object, picture, film, written or printed
22 matter, data or other thing; and
23 (b) any thing from which text, pictures, sound or
24 data can be produced or reproduced, with or
25 without the aid of anything else;
26 picture has the meaning given in section 204B.
page 3
Child Exploitation Material and Classification Legislation Amendment
Bill 2009
Part 2 Child exploitation material offences
Division 1 The Criminal Code amended
s. 4
1 217. Involving child in child exploitation
2 (1) For the purposes of this section, a person involves a
3 child in child exploitation if the person --
4 (a) invites a child to be in any way concerned in
5 the production of child exploitation material; or
6 (b) causes a child to be in any way concerned in
7 the production of child exploitation material; or
8 (c) procures a child for the purpose of the
9 production of child exploitation material; or
10 (d) offers a child for the purpose of the production
11 of child exploitation material.
12 (2) A person who involves a child in child exploitation is
13 guilty of a crime and is liable to imprisonment for
14 10 years.
15 218. Production of child exploitation material
16 A person who produces child exploitation material is
17 guilty of a crime and is liable to imprisonment for
18 10 years.
19 219. Distribution of child exploitation material
20 (1) In this section --
21 distribute child exploitation material, includes --
22 (a) communicate, exhibit, sell, send, supply, offer
23 or transmit child exploitation material to
24 another person, or enter into an agreement or
25 arrangement to do so; or
26 (b) make child exploitation material available for
27 access by electronic or other means by another
28 person, or enter into an agreement or
29 arrangement to do so.
page 4
Child Exploitation Material and Classification Legislation Amendment
Bill 2009
Child exploitation material offences Part 2
The Criminal Code amended Division 1
s. 4
1 (2) A person who distributes child exploitation material is
2 guilty of a crime and is liable to imprisonment for
3 10 years.
4 (3) A person who has possession of child exploitation
5 material with the intention of distributing the material
6 is guilty of a crime and is liable to imprisonment for
7 10 years.
8 220. Possession of child exploitation material
9 A person who has possession of child exploitation
10 material is guilty of a crime and is liable to
11 imprisonment for 7 years.
12 221A. Defences and exclusions for section 217, 218, 219
13 or 220
14 (1) It is a defence to a charge of an offence under
15 section 217, 218, 219 or 220 to prove that --
16 (a) the material to which the charge relates was
17 classified (whether before or after the
18 commission of the alleged offence) under the
19 Classification (Publications, Films and
20 Computer Games) Act 1995 (Commonwealth),
21 other than as refused classification (RC); or
22 (b) the accused person did not know, and could not
23 reasonably be expected to have known, that the
24 material to which the charge relates describes,
25 depicts or represents a person or part of a
26 person in a way likely to offend a reasonable
27 person; or
28 (c) the material to which the charge relates was --
29 (i) of recognised literary, artistic or
30 scientific merit; or
31 (ii) of a genuine medical character,
32 and that the act to which the charge relates is
33 justified as being for the public good; or
page 5
Child Exploitation Material and Classification Legislation Amendment
Bill 2009
Part 2 Child exploitation material offences
Division 1 The Criminal Code amended
s. 4
1 (d) the accused person was acting for a genuine
2 child protection or legal purpose, and that the
3 person's conduct was reasonable for that
4 purpose.
5 (2) It is a defence to a charge of an offence under
6 section 220 to prove that --
7 (a) the material to which the charge relates came
8 into the accused person's possession
9 unsolicited; and
10 (b) as soon as the accused person became aware of
11 the nature of the material the accused person
12 took reasonable steps to get rid of it.
13 (3) Nothing in section 219 or 220 makes it an offence --
14 (a) for a member or officer of a law enforcement
15 agency to possess or distribute child
16 exploitation material when acting in the course
17 of his or her official duties; or
18 (b) for a person to possess or distribute child
19 exploitation material in the exercise of a
20 function relating to the classification of such
21 material conferred or imposed on the person
22 under the Classification (Publications, Films
23 and Computer Games) Act 1995
24 (Commonwealth).
25 (4) In subsection (3)(a) --
26 law enforcement agency means --
27 (a) the Police Force of the State; or
28 (b) the Police Service of the State; or
29 (c) the Office of the Director of Public
30 Prosecutions of the State; or
31 (d) the Corruption and Crime Commission; or
page 6
Child Exploitation Material and Classification Legislation Amendment
Bill 2009
Child exploitation material offences Part 2
The Criminal Code amended Division 1
s. 5
1 (e) any entity of another State or a Territory, the
2 Commonwealth or another country that has
3 functions similar to functions of an entity
4 referred to in paragraph (a), (b), (c) or (d).
5 221B. Forfeiture
6 (1) If a person is charged with an offence against
7 section 217, 218, 219 or 220, the court may order the
8 material to which the charge relates be forfeited to the
9 State.
10 (2) The court may make an order under subsection (1)
11 whether or not the person is convicted of the offence.
12 (3) This section does not limit the court's powers under
13 section 731 or under the Criminal Property
14 Confiscation Act 2000.
15
16 5. Section 557K amended
17 In section 557K(1) in the definition of child sex offender:
18 (a) after paragraph (a)(i) insert:
19
20 (iia) Chapter XXIV -- Child exploitation
21 material;
22
23 (b) in paragraph (e) after "offence under" insert:
24
25 the deleted
26
27 (c) in paragraph (f)(ii) delete "child pornography;" and
28 insert --
29
30 child exploitation material (as defined in section 216);
31
page 7
Child Exploitation Material and Classification Legislation Amendment
Bill 2009
Part 2 Child exploitation material offences
Division 2 Classification (Publications, Films and Computer Games)
Enforcement Act 1996 amended
s. 6
1 (d) after each of paragraphs (a) to (i) insert:
2
3 or
4
5 Division 2 -- Classification (Publications, Films and Computer
6 Games) Enforcement Act 1996 amended
7 6. Act amended
8 This Division amends the Classification (Publications, Films
9 and Computer Games) Enforcement Act 1996.
10 7. Section 3 amended
11 In section 3 delete the definition of child pornography.
12 8. Part 7 Division 1 heading amended
13 In the heading to Part 7 Division 1 delete "articles, child
14 pornography" and insert:
15
16 articles
17
18 9. Section 60 deleted
19 Delete section 60.
20 10. Section 99 amended
21 In section 99 in the definition of objectionable material delete
22 paragraph (b).
23 11. Section 116 amended
24 Delete section 116(2).
page 8
Child Exploitation Material and Classification Legislation Amendment
Bill 2009
Child exploitation material offences Part 2
Consequential amendments Division 3
s. 12
1 12. Section 117 amended
2 (1) In section 117(2a):
3 (a) in paragraph (a) delete "18+;" and insert:
4
5 18+; or
6
7 (b) in paragraph (b) delete "RC; or" and insert:
8
9 RC,
10
11 (c) delete paragraph (c).
12 (2) In section 117(3) delete "(2a)(a), (b) or (c)" and insert:
13
14 (2a)(a) or (b)
15
16 Division 3 -- Consequential amendments
17 13. Community Protection (Offender Reporting) Act 2004
18 amended
19 (1) This section amends the Community Protection (Offender
20 Reporting) Act 2004.
21 (2) In Schedule 2:
22 (a) after the item relating to The Criminal Code s. 204B(3)
23 insert:
24
s. 217 Involving child in child exploitation
s. 218 Production of child exploitation material
s. 219 Distribution of child exploitation material
s. 220 Possession of child exploitation material
25
page 9
Child Exploitation Material and Classification Legislation Amendment
Bill 2009
Part 2 Child exploitation material offences
Division 3 Consequential amendments
s. 14
1 (b) under the heading relating to the Classification
2 (Publications, Films and Computer Games) Enforcement
3 Act 1996 delete "s. 60" and insert:
4
5 the deleted s. 60
6
7 14. Prostitution Act 2000 amended
8 (1) This section amends the Prostitution Act 2000.
9 (2) In Schedule 1:
10 (a) under the heading relating to the Classification
11 (Publications, Films and Computer Games) Enforcement
12 Act 1996 delete "s. 60" and insert:
13
14 the deleted s. 60
15
16 (b) after the item relating to The Criminal Code s. 204A
17 insert:
18
19 s. 217
20 s. 218
21 s. 219
22 s. 220
23
24 15. Working with Children (Criminal Record Checking) Act 2004
25 amended
26 (1) This section amends the Working with Children (Criminal
27 Record Checking) Act 2004.
28 (2) In Schedule 2:
29 (a) after the item relating to The Criminal Code s. 204B insert:
30
s. 217 Involving child in child exploitation
s. 218 Production of child exploitation material
page 10
Child Exploitation Material and Classification Legislation Amendment
Bill 2009
Child exploitation material offences Part 2
Consequential amendments Division 3
s. 15
s. 219 Distribution of child exploitation material
s. 220 Possession of child exploitation material
1
2 (b) under the heading relating to the Classification
3 (Publications, Films and Computer Games) Enforcement
4 Act 1996 delete "s. 60" and insert:
5
6 the deleted s. 60
7
page 11
Child Exploitation Material and Classification Legislation Amendment
Bill 2009
Part 3 Amendments consequential to the Classification (Publications,
Films and Computer Games) Amendment Act 2007
(Commonwealth)
s. 16
1 Part 3 -- Amendments consequential to the
2 Classification (Publications, Films and Computer
3 Games) Amendment Act 2007 (Commonwealth)
4 16. Act amended
5 This Part amends the Classification (Publications, Films and
6 Computer Games) Enforcement Act 1996.
7 17. Section 3 amended
8 In section 3:
9 (a) delete the definition of approved form and insert:
10
11 approved form means a form approved under
12 section 8A of the Commonwealth Act;
13
14 (b) insert in alphabetical order:
15
16 Convenor means the Convenor of the Review Board
17 appointed under section 74 of the Commonwealth Act;
18
19 18. Section 7 inserted
20 At the end of Part 1 insert:
21
22 7. Films consisting only of classified films
23 Despite any other provision of this Act, a film --
24 (a) that is contained on one device; and
25 (b) that consists only of 2 or more classified films,
26 is to be treated, for the purposes of this Act, as if each
27 of the classified films were on a separate device.
28
page 12
Child Exploitation Material and Classification Legislation Amendment
Bill 2009
Amendments consequential to the Classification (Publications, Part 3
Films and Computer Games) Amendment Act 2007
(Commonwealth)
s. 19
1 19. Section 66 amended
2 (1) In section 66 delete "A person" and insert:
3
4 (1) A person
5
6 (2) At the end of section 66 insert:
7
8 (2) Subsection (1) is not contravened by reason only of the
9 exhibition of a classified film --
10 (a) under a title different from that under which it
11 is classified if it is contained on one device that
12 consists only of 2 or more classified films; or
13 (b) with a modification referred to in section 21(2)
14 of the Commonwealth Act.
15
16 20. Section 74 amended
17 (1) In section 74 delete "A person" and insert:
18
19 (1) A person
20
21 (2) At the end of section 74 insert:
22
23 (2) Subsection (1) is not contravened by reason only of the
24 sale of a classified film --
25 (a) under a title different from that under which it
26 is classified if it is contained on one device that
27 consists only of 2 or more classified films; or
page 13
Child Exploitation Material and Classification Legislation Amendment
Bill 2009
Part 3 Amendments consequential to the Classification (Publications,
Films and Computer Games) Amendment Act 2007
(Commonwealth)
s. 21
1 (b) with a modification referred to in section 21(2)
2 of the Commonwealth Act.
3
4 21. Section 96 amended
5 In section 96(2) in the definition of illegal advertisement
6 paragraph (b)(i) delete "by the Director".
7 22. Section 102F amended
8 In section 102F(1) delete "Director" and insert:
9
10 Convenor
11
12 23. Section 106 amended
13 (1) In section 106(2) delete "may be made by an approved
14 organization and" and insert:
15
16 by an organization approved under section 108 for an
17 exemption under subsection (1)
18
19 (2) After section 106(2) insert:
20
21 (3A) The Minister or the Director may, on application under
22 subsection (3B), direct in writing that Part 7 does not
23 apply, or any provisions of that Part do not apply, to an
24 organization approved under section 108 in relation to
25 all or any of its activities or functions that relate to
26 films or computer games.
page 14
Child Exploitation Material and Classification Legislation Amendment
Bill 2009
Amendments consequential to the Classification (Publications, Part 3
Films and Computer Games) Amendment Act 2007
(Commonwealth)
s. 24
1 (3B) An application by an organization approved under
2 section 108 for an exemption under subsection (3A)
3 must --
4 (a) be in writing; and
5 (b) specify the extent of the exemption sought; and
6 (c) be accompanied by the prescribed fee.
7
8 24. Section 108 amended
9 (1) In section 108(1) delete "this Part." and insert:
10
11 section 106(1) or (3A).
12
13 (2) In section 108(2):
14 (a) delete "organization," and insert:
15
16 organization for the purposes of section 106(1),
17
18 (b) in paragraph (b) after "scientific," insert:
19
20 educational
21
22 (3) After section 108(2) insert:
23
24 (3A) In considering whether to approve an organization for
25 the purposes of section 106(3A), the Minister or
26 Director must have regard to the following --
27 (a) the purpose for which the organization was
28 formed;
page 15
Child Exploitation Material and Classification Legislation Amendment
Bill 2009
Part 3 Amendments consequential to the Classification (Publications,
Films and Computer Games) Amendment Act 2007
(Commonwealth)
s. 25
1 (b) the extent to which the organization carries on
2 activities of an educational, cultural or artistic
3 nature;
4 (c) the reputation of the organization in relation
5 to --
6 (i) the screening of films by the
7 organization; or
8 (ii) the demonstration of computer games
9 by the organization,
10 as the case may be;
11 (d) the conditions as to admission of persons to --
12 (i) the screening of films by the
13 organization; or
14 (ii) the demonstration of computer games
15 by the organization,
16 as the case may be.
17
18 (4) In section 108(4) delete "subsection (2)," and insert:
19
20 subsection (2) or (3A),
21
22 25. Section 130 amended
23 In section 130(3) delete "the approved form" and insert:
24
25 a form approved by the Minister
26
page 16
Child Exploitation Material and Classification Legislation Amendment
Bill 2009
Amendments consequential to the Classification (Publications, Part 3
Films and Computer Games) Amendment Act 2007
(Commonwealth)
s. 26
1 26. Section 141 amended
2 In section 141 delete "Director or Deputy Director" and insert:
3
4 Director, Deputy Director or Convenor
5
page 17
Child Exploitation Material and Classification Legislation Amendment
Bill 2009
Part 4 Amendments in relation to advertising
s. 27
1 Part 4 -- Amendments in relation to advertising
2 27. Act amended
3 This Part amends the Classification (Publications, Films and
4 Computer Games) Enforcement Act 1996.
5 28. Section 3 amended
6 In section 3 insert in alphabetical order:
7
8 advertising scheme means the scheme determined
9 from time to time under section 31(1) of the
10 Commonwealth Act;
11
12 29. Section 90 amended
13 (1) In section 90(2) in the definition of unapproved advertisement:
14 (a) in paragraph (c) delete "that Act; or" and insert:
15
16 that Act.
17
18 (b) delete paragraph (d);
19 (c) after each of paragraphs (a) and (b) insert:
20
21 or
22
23 (2) After section 90(2) insert:
24
25 (3) If an advertisement for a film, publication or computer
26 game is approved under section 29 of the
27 Commonwealth Act, a person must not publish the
28 advertisement --
29 (a) in an altered form to the form in which it is
30 approved; or
page 18
Child Exploitation Material and Classification Legislation Amendment
Bill 2009
Amendments in relation to advertising Part 4
s. 30
1 (b) if it is approved subject to conditions, except in
2 accordance with those conditions.
3 Penalty: a fine of $5 000.
4
5 30. Section 91 amended
6 (1) In section 91(1):
7 (a) delete paragraph (a);
8 (b) delete paragraph (c);
9 (c) after each of paragraphs (b) and (d) insert:
10
11 or
12
13 (2) After section 91(1) insert:
14
15 (2A) A person must not publish an advertisement for an
16 unclassified film or an unclassified computer game
17 otherwise than in accordance with the advertising
18 scheme.
19 Penalty: a fine of $5 000.
20
21 31. Section 92 amended
22 (1) In section 92:
23 (a) delete "A person" and insert:
24
25 (1) A person
26
27 (b) after "advertisement for a" insert:
28
29 classified
30
page 19
Child Exploitation Material and Classification Legislation Amendment
Bill 2009
Part 4 Amendments in relation to advertising
s. 31
1 (c) after "of another" insert:
2
3 classified
4
5 (2) At the end of section 92 insert:
6
7 (2) A person must not exhibit in a public place an
8 advertisement for a classified computer game during a
9 programme for the exhibition of a classified film unless
10 the film has a classification specified in column 1 of an
11 item in the Table and the advertised computer game
12 has a classification specified opposite it in column 2 of
13 that item.
14 Table
Item Column 1 Column 2
Film Advertised computer game
1 G G
2 PG PG or G
3 M M, PG or G
4 MA 15+ MA 15+, M, PG or G
5 R 18+ MA 15+, M, PG or G
15 Penalty: $2 000
16 (3) A person must not exhibit in a public place an
17 advertisement for an unclassified film or an
18 unclassified computer game during a programme for
19 the exhibition of a classified film unless the exhibition
page 20
Child Exploitation Material and Classification Legislation Amendment
Bill 2009
Amendments in relation to advertising Part 4
s. 32
1 of that advertisement with the classified film complies
2 with the advertising scheme.
3 Penalty: $5 000.
4
5 32. Section 94 amended
6 (1) In section 94:
7 (a) delete "A person" and insert:
8
9 (1) A person
10
11 (b) after "must not sell a" insert:
12
13 classified
14
15 (c) after "for another" insert:
16
17 classified
18
19 (2) At the end of section 94 insert:
20
21 (2) A person must not sell a classified film that is
22 accompanied by an advertisement for a classified
23 computer game unless the film has a classification
24 specified in column 1 of an item in the Table and the
25 advertised computer game has a classification specified
26 opposite it in column 2 of that item.
page 21
Child Exploitation Material and Classification Legislation Amendment
Bill 2009
Part 4 Amendments in relation to advertising
s. 33
1 Table
Item Column 1 Column 2
Film Advertised computer game
1 G G
2 PG PG or G
3 M M, PG or G
4 MA 15+ MA 15+, M, PG or G
5 R 18+ MA 15+, M, PG or G
2 Penalty: $2 000
3 (3) A person must not sell a classified film that is
4 accompanied by an advertisement for an unclassified
5 film or an unclassified computer game unless the sale
6 of the classified film with that advertisement complies
7 with the advertising scheme.
8 Penalty: $5 000.
9
10 33. Section 95 amended
11 (1) In section 95:
12 (a) delete "A person" and insert:
13
14 (1) A person
15
16 (b) after "must not sell a" insert:
17
18 classified
19
page 22
Child Exploitation Material and Classification Legislation Amendment
Bill 2009
Amendments in relation to advertising Part 4
s. 33
1 (c) after "for another" insert:
2
3 classified
4
5 (2) At the end of section 95 insert:
6
7 (2) A person must not sell a classified computer game that
8 is accompanied by an advertisement for a classified
9 film unless the computer game has a classification
10 specified in column 1 of an item in the Table and the
11 advertised film has a classification specified opposite it
12 in column 2 of that item.
13 Table
Item Column 1 Column 2
Computer Advertised film
Game
1 G G
2 PG PG or G
3 M M, PG or G
4 MA 15+ MA 15+, M, PG or G
14 Penalty: $2 000
15 (3) A person must not sell a classified computer game that
16 is accompanied by an advertisement for an unclassified
17 computer film or an unclassified computer game unless
18 the sale of the classified computer game with that
19 advertisement complies with the advertising scheme.
20 Penalty: $5 000.
21
page 23
Child Exploitation Material and Classification Legislation Amendment
Bill 2009
Part 4 Amendments in relation to advertising
s. 34
1 34. Section 102D amended
2 In section 102D(1)(b) delete "classified".
3 35. Section 152A inserted
4 After section 151 insert:
5
6 152A. Advertisements for unclassified films
7 (1) A person does not commit an offence under
8 section 91(2A) by publishing an advertisement for an
9 unclassified film if the advertisement is published in
10 accordance with a transitional Commonwealth
11 regulation.
12 (2) In subsection (1) --
13 transitional Commonwealth regulation means a
14 regulation made under the Classification (Publications,
15 Films and Computer Games) Amendment (Assessments
16 and Advertising) Act 2008 (Commonwealth)
17 Schedule 1 item 13.
18
19
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